Philip Abrahamson 12-05-08 Dr. Skedros “Church and State in Byzantium”
Sexuality and the the Church have always had a tenuous relationship. In the most recent election the Catholic and Latter Day Saints churches broke funding records for legislation against same-sex marriages and unions in California. The Church of Latter Day Saints alone pumped in over $42 million dollars to pass Proposition 8 in California banning same-sex marriages. This is an instance of the morals of a church influencing civil law. In addition to problems of Church and State relationships in our own country this recent issue brings up questions of the history of this relationship. Has the Church always been able to influence the State and rely on it to enforce its morality, especially regarding sexuality? It seems unusual that in the United States today, where the Church and the State also have a limited but tenuous relationship, that a church is still able to have its values reflected by law. If this is still possible in a country and culture whose sense of the relationship between Church and State is fundamentally and constitutionally one of separation then one might assume that in State’s more sympathetic to a specific church or religion would naturally also reflect the values of that faith. Hence the Roman Empire after Christianization would have reflected the sexual mores of the Church and enacted laws in support of that ethic.
In the discussion of homosexuality this opinion has often been taken for granted and forwarded without much direct scholarship to support it. There has been a simple history set up and assumed by generations of scholars regarding the fate of the homosexual; the Greeks and Romans were relatively tolerant of homosexuals and at least recognized some forms of legal homosexuality, Christianity rose to power and banned all forms of homosexual activity and it has remained so, at least in legal terms, until the modern Gay Rights movement. This hypothesis is often assumed, but rarely stated explicitly, but underlines the arguments of much scholarship on the topic. It has been central to arguments from many gay activists accusing the Church as being the source of persecutions, hatred, laws, and intolerance against the gay community. In the critical academic world too it forms the backbone of indictments against the Church as represented in the work of Eva Cantarella. Indeed it has caused other scholars to attempt to exonerate the Church from some blame by reexamining the evidence as in the work of Derrick Sherwin Bailey and most notably John Boswell.
These last three authors bring to light an alternative history than the one often assumed and mentioned above. Though they disagree about particulars and conclusions they have uncovered much evidence that supports a different relationship between Church and State than witnessed during the recent elections. A look into the laws and canons regarding homosexuality during the first seven centuries in fact inverts this relationship. While it has been heretofore believed that the rise of Christian emperors led to increasing intolerance and laws against homosexuals, rather these laws were consistent with changing Roman values that were independent of Christian influence. These changing values were linked with ideas of power structures and political efficacy. These laws were made for political rather than moral reasons and did not reflect Christian attitudes but rather changed them. Not only were these laws reflections of changing Roman values but they also preceded and informed the canons of the Church and, at least in one case, the State directly intervened in the creation of Church canons regarding homosexuality. Therefore intolerance and prohibition of homosexuality on a universal scale came first from the State in the form of law and filtered into the canons of the Church and were largely based upon power structures and politics rather than on inherent morality.
Our goal here is not to undergo a complete examination of Christianity’s attitude toward homosexuality, but merely to compare Byzantine law to the canons of the Church during the fourth through seventh centuries and observe the relationship between them. Therefore an theory regarding the nature or definition of homosexuality will not be forwarded here. Essential to our discussion however is an understanding of sexual roles in antiquity. Though I can offer only a brief sketch here, it is necessary for the following argument as there is an important distinction in Byzantine law and Church canon. Perhaps because the heterosexual relationship is more common, the terminology of homosexual relationships reflects a heterosexual understanding of sex. Therefore a distinction between the “active” and “passive” roles during sex or in the relationship are important to make, whether they are real or perceived. An active partner is one who inserts his penis into his partner, whether male or female, and the passive partner is the one entered. This applies to oral sex as well as intercourse, between two men, a man and a woman, or even two women (in this case another body part or object may be used). Boswell cautions us on the use and insufficiency of these terms, but concedes that more appropriate terms in English are not readily available. This distinction may not seem important to modern sensibilities, but it plays a very important role in the rhetoric and conceptions of antiquity, especially in laws regulating homosexuality.
There is much discrepancy between popular conceptions of how relationships function and the actuality of how they play out. It should not be inferred that all homosexual relationships in antiquity fit this model. Just as today there is a popular notion that between a gay couple one must “play” the woman and one the man. This is a misconception based on old notions of specific gender roles in a relationship. A heterosexual couple might just as easily not conform to these roles. Inherent in this Roman conception is a lack of mutuality. One man must love while the other must be loved. One must be active while the other is passive and one dominant over one submissive. It is unlikely that relationships played out this way in the bedroom. It is much more likely that couples took turns and actively pleasured each other. Gay couples must be given more credit for sexual creativity than some homophobics allow. It is certain that there are many examples from antiquity of mutual love being expressed by gay couples. All homosexuality in the Graeco-Roman period should not conform to the misconception of Greek pederasty with a dominant lover and submissive beloved. There were many more forms of gay relationships than this, just as in today’s society examples of a plethora of romantic and sexual relationships can be found.
There are few references to laws regulating homosexual behavior before the fourth century which coincides with the rise of Christianity to political power. This has led many scholars to assume that the Empire began to establish laws promulgating the new Christian ethic. At first glance this may be a tempting conclusion, but there are many inconsistencies that must be highlighted which may point to a different conclusion.
Before the fourth century there were a few laws in the Roman Empire regarding homosexuality. These are only referenced briefly in secondary sources which are unclear in their descriptions of the law. From their context it is very hard to objectively reconstruct the laws in question. The most important and disputed of these is the Lex Scantinia, which has been assumed to refer in some way to homosexuality, though the actual provisions of the law are hazy. It seems that it did deal with male homosexuality as references in Juvenal, Ausonius, Tertullian and Prudentius hint. Bailey draws no conclusions about it, but does note about the Lex Scantinia that “when invoked, it seems to have been for political rather than moral reasons.” Edward Gibbon concedes that though he would have liked the law to have outlawed all effeminacy and homosexual lusts, the evidence doesn’t support this. Cantarella affirms this by ratifying Gibbons assertion that the law dealt with homosexual seduction by males (though she disagrees with his other assertion of homosexual violence). On the other hand Boswell disagrees with all the above and asserts that there was no Roman law against homosexuality before the third century. It is likely that the references to the law which have allusions to homosexuality say more about the biases of the author than the content of the law, since there is very little agreement among sources. References to it in antiquity, though vague, begin to show a prejudice against homosexuality, especially passive practices.
Greek and Roman sexual practices may seem strange to us on many levels. Some of these are due to their perception of the consequences of sexual liaisons in other aspects of their life. Even in modern times strange myths persist about the results of engaging in taboo sexual activities. Many young boys can still recall stories from their mothers of getting hairy palms or going blind from masturbation (the worst I have heard of is the guilty knowledge of masturbation leads to the death of a puppy!). All are unsubstantiated by science of course, but this doesn’t prevent myths from being circulated. There was a general myth in Rome that passive men became like women in that they lost their manhood. They could lose their citizen status and authority.
In Rome too, expectations of gender roles and sexual roles led to the creation of myths about the consequences outside the bedroom. Men were powerful and dominant, always the aggressors in relationships. This is testified to in the plethora of rape scenes in myths about the gods and on Roman frescoes. Women on the other hand were seductresses and passive though often clever in their use of sexuality (one only need recall the Lysistrata of Aristophanes). Taboos regarding sexuality were not related to sexual object choice, as it tends to be in the modern U.S., but rather by sexual role choice. Men could have sex with men, but if they were adult free born citizens, must not be the passive or submissive partner. Non-citizens such as foreigners or slaves could be passive, as often slaves were forced by their masters to be passive partners. Youths could also be passive partners if it was voluntary. This prejudice was related to the “popular association of sexual passivity with political impotence. “Those who most commonly played the passive role in intercourse were boys, women, and slaves—all persons excluded from the power structure.” “Roman homosexuality, then, was purely and simply, not to say brutally, a matter of bullying and violence, a manifestation of the social and sexual power of the stronger over the weaker, the master over the slave, the victor over the vanquished.” This statement of Cantarella’s is too strong but does provide a basic idea of Roman virility and masculinity. Thus a free born citizen could engage in intercourse as the active partner with any social subordinate without fault or breaking taboos. This notion came to dominate Roman thinking increasingly in the early centuries of the Common Era.
Related is the Roman attitude toward prostitution. Both male and female prostitutes were recognized as legal in the Roman Empire. One could legally hire prostitutes of either sex without repercussions, though there were male prostitutes known to take the active role for those with a passive preference. In the third century however sentiments began to change. Whereas prostitution had been taxed in Rome and money was added to the public funds, Alexander Severus ordered that funds instead be put toward repairs to theatres, stadiums and the Circus. Later Philip the Arab forbade male prostitution entirely after seeing a young prostitute who looked just like his son. This was effective only in the West however as the tax continued in the East up into the sixth century. This tax was collected by pagan and Christian emperors alike since Constantine. Indeed Evagrius, sixth century historian, denies charges raised by Zosimus that Constantine originated the tax. He also states that there were no laws prohibiting prostitution and “tax itself constituted a legal safeguard for the acts upon which it was levied, so that those who wished to could engage in them legally and “with impunity.”
Regardless this begins to show a shift in Roman thought and practice. Some authors have stated explicitly that Roman sexual ethics were changing before and independent of Christian influence. Paul Veyne even goes so far as to say that in the first few centuries of the common era “Rome saw a sea-change in sexual relations, by the end of which pagan morality was identical to the future Christian morality of marriage.” He gives two causes for this shift: changes in the aristocracy from competition to service and reactive self repression on the part of the plebs. The first describes the rapidly changing environment of the aristocracy, increasing tensions between the old Roman families and the new ones from the provinces. Increasingly to hold together the unity of an Empire they had to cooperate and even intermarry. These growing ties catalyzed a new social ethic including acceptable sexual behavior. The aristocracy had to begin to conform to a more uniform sexuality that was not offensive to possible alliances especially for exchanges of slaves or arranged marriages. Previously heads of families “whose sexuality was based on rampant aggression” could subject their wife and slaves, both female and male, to any carnal whim. Now they instead conformed and practiced respectability in the eyes of the other families. The boast of the Roman changed from sexual dominance over other men to fidelity to one’s wife. The second cause expresses a reaction of the lower classes to their own subjection, that of “personal dignity through repression.” They could transcend their social position by acquiring the favor of the nobility and the gods by repressing pleasure. “Roman sexuality morality had changed from bisexuality, based on aggressive gratification, into heterosexuality based on reproduction.”
It is important to note here that this shift was cultural and social and not distinctly moral. There was reluctance and change took centuries. Also the change from bisexuality to heterosexuality should not be a basis for moral judgement, since Veyne’s observation is more of perceived social behavior and interaction rather than reality of Roman sexual practices. Needless to say in Roman literature contemporary with these changing social situations all variety of sexual practices and relationships are describe including gay fidelity and heterosexual promiscuity. Boswell even references complex debates over which kind of love was more noble and superior, heterosexual or homosexual. It cannot be stressed more that “aggressive bisexuality” has little to do with the nature of gay relationships or people and everything to do with Roman attitudes of gender expectations. Modern comparisons are certainly in the minority and do not have universal implications.
These changing ideals are consistent with the development of prohibitive laws against homosexuality under the Christian Emperors. While Alexander Severus and Philip began changes in law reflecting these changing opinions, Constantius and Constans took the next step and forbade passive homosexuality. In 342 gay the dual emperors promulgated a law that clearly restricts homosexual practices. It has been variously interpreted as either referring gay marriage, as in Boswell, or passivity by Roman citizens. Boswell interprets it literally in that the language used refers to marriage between two men and marriages of this sort were known to exist in the later Empire. Bailey and Boswell both are cautious about this law as it is unclear what, if any, the punishment for it was and if it was ever invoked. W.G. Holmes suggest that the law was “enacted in a spirit of mocking complacency.”And Cantarella uses backward logic to attribute the punishment of castration to “passive sodomists.” If it was enforced it almost certainly was not punished by castration since that punishment was invoked by Justinian and referred to in contemporary sources as a novel idea. Regardless of the punishment or the enforcement of the law which is pure conjecture, it does remain solidly in line with changing acceptable Roman practices. It limits its prohibition to male citizens taking the passive role in intercourse. Any forms of homosexuality were still legal, including prostitution which was still being taxed in the East.
A second law was passed fifty years later by the emperors Valentinian II, Theodosius, and Arcadius in 390 which was later codified into the Theodosian code. Again the language is cloudy allowing for multiple readings, with few of them being satisfactory. Bailey interprets it as referring this time to active homosexuality. Boswell disagrees and posits that Bailey probably did not know about a longer version of the law in the Mosaicarum et Romanarum legum collatio. This second version, though no more clearly, seems instead to suggest the punishment is not for homosexuals but those who forced men into prostitution. Bailey himself mentions the possibility of this reading even without having read the Mosaicarum. Yet another alternate reading is given by Cantarella. She suggests that the law is a reenforcement of the earlier prohibition on passive homosexuals. It is not the pimps who force boys into prostitution, but the ones who allow themselves to be passives. She cites other opinions too including one positing that the law is against transvestites. There is little contemporary evidence to objectively see how this law was applied and whom it punished. Clearly it was not a universal condemnation such as Bailey suggests, nor was it widely enforced for in both cases the further and more clear laws of Justinian would have been unnecessary.
In one case however, Cantarella suggest the law was enforced. The famous massacre of Thessaloniki was sparked by the arrest of a popular charioteer of the Circus by a Gothic militia. Apparently he was accused of trying to seduce one of the imperial servants. It is unclear whether his arrest was warranted under the law of Theodosius, another law, or some other political reason. In any case the arrest sparked a popular uprising that resulted in the slaughter of thousands of people (reports differ from 3,000 to 7,000). This incident is known because of Ambrose’s response, excommunicating the Emperor Theodosius until several months later after public penance. Cantarella cites this incident to provide evidence for the enforcement of Theodosius’ law, though there is little evidence to link this arrest with the law and there are no other recorded instances of enforcement. Also she refuses to allow the cause of the uprising to “the homosexual’s human rights’. Why is not stated except that it would be difficult to imagine. It may not reflect “Gay Rights” as we know them today, but it could at least reflect the injustice of the arrest and persecution. She also ignores similar evidence of popular opposition to the unjust applications of Justinian’s laws a hundred and fifty years later, found in Procopius.
Before the legislation of Theodosius there were only two canons from the Council of Ancyra that have been interpreted as referring to homosexuality. These are only late Latin interpretations however, understood as prohibitions against homosexuality only much later than the fourth century. The original canons say nothing whatsoever about it, but rather refer to bestiality. Bailey states that these original canons are “irrelevant to our study [of homosexuality], and inadmissible as evidence of the view of the Church in the fourth century.” Therefore we must look later to find canons of the Church. The only church canons that refer to homosexuality during the fourth through sixth centuries are not really canons at all, but come from individual fathers rather than from counsels.
A 14th century hieromonk named Matthew Blastares collected these canons (as well as laws) into one handy encyclopedia. In the introduction to his work he states his intention as making legal materials available without the need to refer to any other source. This involves a detailed collection from all the Church canons and Byzantine Law available to him. There are only three references from the fathers and one law against homosexual acts. In this collection there are more sources referring to menstruation, masturbation, adultery, and night emissions than to homosexuality. The three references that do refer to homosexuality are collected from letters by Basil the Great, Gregory of Nyssa and John the Faster. Since John was the Patriarch of Constantinople in the late sixth century after Justinian he will be discussed later in the paper. The canons of Basil and Gregory are given below as they appear in Patrick Demetrios Viscuso’s translation of Blastares’ nomokanon.
Basil the Great in his seventh, as well as sixty-second canon, states, “Let the man that commits an unseemly act with men, and repents, be subject to appropriate penalties of repentance for fifteen years, and after this let him be deemed worthy of Communion.”
However, Gregory of Nyssa lengthens their repentance to eighteen years.
These however are not how they appear in the original sources but are paraphrased. Basil’s letter actually prescribes the same penalty as he does with adulterers, which amounts to fifteen years. According to Bailey the punishment prescribed by Gregory is actually less severe than that of Basil. Each had a different series of steps toward repentance with Basil’s being the harsher, but as Bailey and Boswell both point out, both Fathers equate homosexuality with adultery. In fact Basil deals with it more leniently than he does for “murder, divination and conjuration, incest with a sister (all incuring a penalty of twenty years), and apostasy (which was punished by exclusion form Communion until the hour of death).” There is also very little evidence whether these punishments were actually enforced. Probably they were merely pastoral suggestions rather than legally or spiritually binding penances. The Cappadocians themselves are known for their pastoral emphasis and not rigid adherence to law and codes.
There is further proof of the connection between homosexuality and the concept of power structures in the reasoning behind the penances of Gregory. In his canonical letter to Letoius, he explains why homosexuality is equivalent to adultery. First he distinguishes adultery from fornication because it involves injury to another, namely the spouse, while fornication is indulgence of lusts with no injury to others. Then he compares homosexuality to adultery and therefore to injury to others. This shows a conception of homosexuality in line with Roman antiquity where one man must be dominant and active, while the other is submissive, passive and perhaps unwilling. Since Byzantine law now banned voluntary passivity for free born males, all passive partners must now be either slaves or prostitutes. Therefore a passive partner must suffer injury, either physical or mental. This conception of homosexuality has, first of all nothing to say about lesbian women, and secondly little bearing on modern conceptions of two consenting adults, especially in exclusive long-term relationships. It is an old notion that one partner must always be passive and suffer, while one is dominant and aggressive. It is easy then to see why Basil and Gregory would equate this concept of homosexuality with adultery.
Following Basil and Gregory is a period of relative silence on homosexuality. While individual Fathers may condemn it, notably John Chrysostom, there are no more prescriptions of canonical quality until John the Faster two centuries later. Even Byzantine law does not change again until the time of Justinian. Homosexuality appears not to have been a burning issue either in ecclesiastical or judicial circles. One wonders what the popular conceptions and practices were during this period of the fifth and early sixth centuries. In any regard attention must now be paid to Justinian who, more than any other person during this period, shaped the medieval and modern conceptions and intolerances toward homosexuality.
The most important of all laws regarding homosexuality in Byzantium were under Justinian in the early sixth century. More than any other, these laws acted as precedents by informing later law codes and have “exercised a very strong influence, not only upon western European systems of civil and criminal jurisprudence, but also upon the ecclesiastical canon law.” In particular Justinian’s Novels 77 and 141 are referenced by later canons in spirit and language such as in the canons of the Council of Naplouse in 1120. These canons show a unique relationship between Church and State as a combine conference of clergy and lay people attended the council. The canons themselves prescribe the death penalty for unrepentant sodomists, but the Church was probably never meant to enforce it, but rather the State.
Justinian’s first law against homosexuality can be found in his Institutes published in 533. In them he extends the lex Julia, previously having covered adultery, to now include male homosexuality. His law reads as follows:
Then the lex Julia for the suppression of adultery (de aduleriis coercendis) punishes with death not only those who dishonour the marriage-bed of another but also those who indulge their ineffable lust with males (…) The penalty invoked by the statute against offenders is confiscation of half their estate if they be of respectable standing, corporal punishment and relegation in the case of baser persons.
But were Justinian’s laws enacted by a Christian ruler wanting to enact Christian morality into law? If homosexuality was absolutely a sin than why did it take so long for the laws to change after the rise of a Christian Emperor? Cantarella seems content with assuming that time and caution was needed in making homosexual practices illegal to avoid “clashing with an ethic which for centuries had been inspired by a concept of masculinity which, at least in theory, had never faded. Her argument however is unconvincing. It is highly dubious to ascribe such caution to the Emperors, more notorious for capricious and often injudicious actions. Cantarella’s argument suffers even more when in another section of her book she argues that Roman sexual ethics changed to become nearly identical with Christian ethics, though independent of Christian influence. Why do the emperors need to show such caution when even the pagans despise homosexuality? Much more likely is that the slow enactment of laws against homosexuality is indicative of and consistent with this Roman shift in tolerance. It was not a deliberate process, but rather a reflection of the increasing intolerance of homosexual activity.
Cantarella’s argument betrays her belief that these laws would have been unpopular to the masses and therefore the opinion of the minority. She and Bailey both ignore Procopius, but his Secret History of Justinian’s rule probably gives us the most candid and revealing insight into popular opinion. It indicates a political rather than a strictly moral basis for the laws against homosexual acts.
Afterwards he also prohibited sodomy by law, not examining closely into offences (sic) committed subsequently to the law but concerning himself only with those persons who long before had been caught by this malady. And the prosecution of these cases was carried out in reckless fashion, since the penalty was exacted even without an accuser, for the word of a single man or boy, and even, if it happened, of a slave compelled against his will to give evidence against his owner, was considered definite proof. Those who were thus convicted had their privates removed and were paraded through the streets. Not in all cases, however, was this punishment inflicted in the beginning, but only upon those reputed to be Greens or to be possessed of great wealth or those who in some other way chanced to have offended the rulers.
The Greens were a rival circus faction which would have sat on the opposite side of the circus from the Blue, of which Justinian was an ardent member. The division between these factions was often deep and violent. Justinian apparently enjoyed to harass the Greens and there was more than a little hatred in his opposition to them. This is further evidence for the political nature of these laws. Under Justinian in particular there seems to have been a political agenda: to emasculate rivals. Nothing could be more damning for a man with political ambitions than to be declared a woman, effeminate, incapable of leadership, impotent.
The punishment of castration upon those accused of sodomy is supported in another contemporary source. Joannes Malalas in his history recounts the story of two bishops, Isaiah of Rhodes and Alexander of Diospolis, who were found guilty of committing homosexual acts. Isaiah was tortured and exiled, while Alexander was castrated. This was all done before Justinian passed his laws against homosexuality. Malalas himself, makes note that shortly after this event Justinian passed laws against homosexual acts, punishable by castration. He also notes that “from that time on, those who experienced sexual desire for other males lived in terror.” Boswell comments that there is no proof of any church official supporting or praising this law of Justinian’s. Indeed two members of the clergy were the targets of the persecution.
Charges of homosexuality were tenuous but definitive and the ultimate insult, ambiguous though they were. One may draw comparisons to the McCarthy era and charges of communism in the modern era. Justinian doesn’t hold the blame alone, for Procopius shows his wife Theodora acting with particular cruelty.
And she [Justinian's wife Theodora] also conceived an anger against a certain Vasianus, a youthful member of the Green Faction and not without distinction, for having covered her with abuse. For this reason Vasianus ( for he had not failed to hear of this anger) fled to the Church of the Archangel. And she immediately set upon him the official in charge of the people, commanding him to make no point of his abuse of her, but laying against him the charge of sodomy. And the official removed the man from the sanctuary and inflicted a certain intolerable punishment upon him. And the populace, upon seeing a free-born man involved in such dire misfortunes, a man who had long been living in luxury, were all straightway filled with anguish at the calamity and in lamentation raised their cries to the heavens, seeking to intercede for the youth. She, however, only punished him even more, and cutting off his private parts destroyed him without a trial and confiscated his property to the Treasury. Thus whenever this hussy became excited, no sanctuary proved secure nor did any legal prohibition hold, nor could the supplication of a whole city, as it was clearly shewn, avail to rescue the offender, nor could anything else whatever stand in her way.
Again the object of attention is a man of the Green faction. Her insinuations cause the public to rise up in protest, similar to the Thessaloniki riot, though they are not punished this time. However, it does show that these laws were contrary to public opinion especially in their method of enforcement. These events as recorded in Procopius show that the motives were political, or at least the enforcement thereof. After all it was easy to accuse someone of being a homosexual, without need for proof, one only need to highlight some indication of effeminacy. The punishment is highly symbolic of this political motive emasculating your opponents making them powerless and effeminate; in essence accusing them of what one would like them to be.
Justinian’s personal disapproval can be witnessed by his insistence that provisions against homosexuality also appear in his commissioned Novels 77 and 141. However aside from these few references in Justinian’s day, there is very little record of how or if these statutes were applied after his death. Boswell cautions us, “Simply noting that something is illegal may be grossly misleading of one does not also comment on the extent to which such laws are honored, supported, or generally approved.”
From the laws of Justinian until the twelfth century there are few innovations or even restatements of anti-gay legislation within the Church or in European law. The legal codes of Justinian held prominence in the Empire for many centuries afterward and acted as a textbook for later legal codes. As mentioned above, Justinian’s Novels 77 and 141, were used as the foundation of Canon law in 1120, the first time in the East that such statements on homosexuality were decided in conciliar fashion. The only other laws or canons of note can be reduced to two, that of John the Faster collected in Blasteres nomokanon, and the laws of the Visigoths in the seventh century.
John the Faster was Patriarch of Constantinople 582-595, during the last years of Justinian’s century. His statement is usual in that it seems to reflect none of the developments of the previous two hundred years. His conception of homosexuality, in fact, seems to precede even the canons of Gregory and Basil. No punishment is prescribed, nor is there any discussion on the fault or sin of the ‘active’ partner. Rather in its simplicity it merely legislates whether a passive youth could become a priest.
If a boy was polluted by a man, if he received the ejaculation in the thighs, let him be allowed to enter the priesthood after being subjected to the appropriate penitential discipline. However, if in the anus, let him not all be deemed worthy of priestly rank. Although on account of his youth, he himself did not sin, yet his vessel was wrecked, and it is not possible for him to perform priestly functions because he has been defiled.
Not only is it reminiscent of Levitical purity law, but it also recalls earlier Roman attitudes about political efficacy. John does not accuse the youth of any sin, but only iterates that a priest who “has been defiled” cannot perform the priestly functions. In the absence of condemnation, it appears that John is interested only in the practical implications of sexual passivity. A passive youth might proof to be a passive priest, one incapable of priestly function and lacking in power.
The second event of note is limited to Gothic Spain in the seventh century where the kings actively suppressed homosexuality. In 650 King Kindasvinth issued the most descriptive edict to date. Not only does he prohibit both active and passive forms of male homosexual intercourse, but punishes it by castration, confiscates all property and possessions and condemns them to excommunication. This last one is of particular interest since it legislates that those guilty of homosexual intercourse must be taken to their local bishop for expulsion. This is an instance of direct intervention by the State in Church affairs. However, there was resistance on the part of the Church and it was “forty years (and six national church councils)” later that a Church council finally enacted a similar law, but only from direct orders by the new King Egica. Afterward he proudly passed a new law beginning, “We are compelled by the teaching of the orthodox faith to impose the censure of the law upon indecent practices…” flaunting the recent enactments of the Church. Both Bailey and Boswell note the political implications and motives for these enactments. Bailey draws allusions to these laws as convenient for removal of opponents. Similarly Boswell notes that Jews and gay people became the scapegoats of a Spain attempting to unify itself. He also notes that the canon mitigates the punishments for offenders, especially the clergy. Another point, which neither remark on but is most striking, is the fact that the original law under Kindasvinth had no stipulations on clergy though both the Church and Egica’s laws specifically mention clergy. It is probable that the Kings’ targets were in the clergy, hence the Church’s wise hesitation. Only under compulsion did they enact a law, but one which proscribed only expulsion from holy orders and exile for clergy. The canon made no distinction between “order, rank or person” but allowed all to be punished. The original civil law must not have been enforceable, at least in practice, on the clergy themselves. Egica’s second law doesn’t allow this loophole, spefically mentioning that from hereafter “any man, be he cleric or layman, whatever his state or birth,” is now punishable. Boswell does note an overall tendency of Medieval civil law to be passed “without advice or support from the church” and often was aimed at clergy.
Despite recent events and modern conceptions of the Church’s role in legislating sexual morality in both ecclesial and civil arenas, history shows that this formula has not always been active, even Christian Rome. After all “It is not as if, throughout the last two millennia, reluctant legislatures had been forced by the spiritual authority to enact laws and to prescribe punishments which they secretly detested.” Quite the opposite as seen in Visigoth Spain where a reluctant church was forced to enact laws from the civil authority. Even when such intervention wasn’t applied, still civil laws often preceded and informed canon law. Before Basil and Gregory there was Constantius and Constans. Before the Council of Naplouse, from which the Church received its most extensive canons against homosexuality there was Justinian and his Novels, which directly influenced the council. Popular histories take for granted that these civil authorities were also Christian and therefore applying Christian morality. Other legislation of these same Emperors or most any civil authority show otherwise. Christianity has always been plagued by the love-hate relationship of the Church with the State, where the State overrides ecclesial authority. How often has the State interfered in Church appointments to bishoprics or even patriarchates? Or confiscated Church lands? Likewise the Empire under Justinian allowed common consent divorces in Novel 140, immediately preceding a prohibition of homosexual acts. Not only was this law in contradiction to Justinian’s earlier laws, but also against the opinions of the Fathers and Scripture. Indeed in the New Testament, while Jesus never uttered a word against homosexuality, he did prohibit this type of divorce. The Constitutional concept of separation of Church and State was largely to protect the Church from abuses of the State. It is clear that the best interest and common morality of the Church was not always reflected in the legislation, much less the motives of the State.
Moreover these laws are more indicative or political beliefs than inherent morality. They reflected Roman understandings or sexual passivity with political impotence. They were enforced to further the political agendas of the State rather than fulfill ecclesial requests for stringent enforcement of morality. Justinian and his wife Theodora used the loose charge of sodomy as a means to bring down political enemies. Procopius shows a population much aggrieved at the injustice of the laws, hardly reflective of popular morality.
The very laws against homosexuality in Rome are continuous with a changing Roman ethic within the aristocracy. Those early laws were slowly enacted and limited in scope not to “get the feet wet” of a cautious Empire like Cantarella posits, but were reflections of a developing ethic distinctly Roman. On the one hand Cantarella forwards this cautious notion but yet refuses to acknowledge popular uprising as a call for justice when the laws were enforced.Cantarella seems to suffer from limited knowledge of Christianity. She reads back medieval understandings of homosexuality onto the earlier patristic sources, which she examines in scant and highly selective ways. Boswell is much more thorough citing both positive and negative attitudes toward homosexuality in the Church Fathers. She gives a more consistent and intentional progression of the legislation against homosexuality under Christian Emperors that simply is unfounded. Bailey and Boswell both agree that this legislation is independent of Christian influence. Cantarella herself agrees that Roman morality regarding homosexuality began to change in the early centuries of the Common Era and yet she doesn’t see this legislation as reflecting this shift. Why she attributes the change in laws to Christian influence and not the change in Roman morality is unsupported by her arguments.
Cantarella is too eager to make a narrative arc and often forces her arguments by ignoring contradictory sources or doing only surface readings of the sources she does use. She is prone to universal statements and over simplification. While Boswell may read into evidence he also recognizes their ambiguity. Cantarella is satisfied with statements like “clearly,” “absolute clarity,” “crystal clear,” and “beyond doubt.” While she may have some thoughtful arguments (especially about Greek and Roman practices and attitudes), they are suspect because of her unwillingness to at least acknowledge the ambiguity of the sources, which Bailey and Boswell point us to. Her history of homosexuality ends, along with her expertise, in late antiquity. She also leaves no room for change in Jewish and Christian interpretation while her entire book is about how Graeco-Roman culture and opinion did change. Why she doesn’t offer the Jewish and Christian traditions the same courtesy of in depth investigation and the possibility of change as the Greeks or Romans is highly suspect. One is led to suspect that her forte is not Christian nor Judaic studies. Instead she introduces them as the capstone which forever alters the Roman way, thus completing her arc “from a positive evaluation of homosexuality… to an ‘unnatural crime.”
Ultimately her study suffers because of where she chose to end it, with the ascension of Christianity to legislative power. She misreads Christianity’s influence and does not explore how it changes or the diverse approaches and attitudes toward homosexuality under a Christian Rome. Bailey and Boswell do a much better job toward this end, expectedly so, since their studies focus on Christianity’s role in shaping views toward homosexuality.
Bailey’s study suffers from the lack of knowledge and limited studies of homosexuality in the fifties, especially historical ones. Many scholars and scientists were still convinced that homosexuality was a psychological condition, inflicted or facilitated in early childhood often with latent realization of awareness or activity. Since publication of his book homosexuality has been pulled off of the American Medical Association’s list of psychological disorders. His book should be consulted with some distance and critique. It is still a good source for references to instances of homosexuality in literature, history and law, though any more recent book doubtlessly will refer to his anyway. Therefore it should be consulted only with preference given to it’s critiques in modern studies.
On the other hand the argument against Boswell seems less against his scholarship and more of a gut level response to the implications of it. Out of the three he has the widest breadth of knowledge, most detailed annotations and footnotes, and command of more languages. Criticisms against Boswell come from occasional mishandling or misinterpretation of details of history. A study like his demands that he be familiar with a wide range of disciplines and languages. If it suffers it is because of the large survey format where details fall through. While individual arguments may be forced or unconvincing, on the whole his book is most enlightening and challenging. He brings out the ambiguities and inconsistencies in the sources, not willing to settle for broad, sweeping statements about entire cultures, or attitudes regarding homosexuality.
Though criticized for it, Boswell’s understanding of homosexuality is quite innovative in scholarship. But Boswell has perhaps the best understanding of homosexuality in the modern context and a poignant way of applying it to history. Certainly his books will be the bedrock of the developing application of “Queer Theory” to Christian theology and history. As a gay man himself, he suffered from double criticisms, against a bias in his work and against his person. This is quite unfortunate because these criticisms have nothing to do with either his scholarship or his person, merely his orientation, and are often limited to bigoted disapproval of homosexuality. Boswell was a brave and invigorated scholar who challenged traditional interpretations and provided a basis for future scholarship in the field unhindered by antiquated notions of what it means to be gay. With much debate still extant the “Boswell Thesis” is anything but dismantled.
It goes without saying that this is a topic ripe and ready for more study. Ecclesial scholars in particular need to begin to incorporate modern scientific understandings of homosexuality (and indeed sexuality in general) into studies of the Church Fathers and history regarding the issue. Many ancient arguments against homosexuality show a fundamental misunderstanding of homosexual persons and the “cause” of these tendencies. “Moreover, hostility to gay people provides singularly revealing examples of the confusion of religious beliefs with popular prejudice.” There has been an inordinate amount of negative attention and even hateful invective against homosexuals given the sparsity of references in the Bible, the Fathers, or indeed the Canons. Only by analysis of both the modern and ancient interpretations can the Church move forward into the truth of the matter and develop appropriate responses. Will the position of the Church change in light of these investigations into the complicated truth about homosexuality? Only time and prayer will tell.